State Ex Rel. Koppe v. Second Judicial District

47 P. 100 | Nev. | 1896

The facts appear in the opinion. The action of Haydon v. Koppe, was appealed from the justice's court of Reno township to the district court, and upon a trial there, before a jury, the defendant obtained a verdict and judgment in his favor. Thereupon the plaintiff, in accordance with the provisions of the statute, moved for a new trial, which was regularly granted by the court. The relator, the defendant in said action, has applied for a writ of certiorari to set aside the order granting a new trial upon the ground that, in cases appealed from a justice's court, the district court has no jurisdiction to grant a new trial.

This contention is founded upon the language of section 3604, Gen. Stats., which directs that: "All cases appealed to the district court shall be tried anew in said court, but said court may regulate by rule the practice in such cases in all respects not provided for by statute."

The relator contends that in the trial of appealed cases the district court has only such jurisdiction as is specially conferred upon it by statute; that it has no common-law jurisdiction, and, as the right to try anew does not include the right to grant a new trial, no such power exists. We do not, however, feel justified in taking so restricted a view of the powers of the district courts. Nothing is said in the statutes as to what the procedure in appealed cases shall be, except that the court may regulate it by rule, which, so far as we know, has never been done, except in some few points immaterial to this question, but the legislature must have expected those courts to pursue the course they generally do pursue, and that is to try such cases in substantially the same manner that cases originally begun in the courts are tried. Believing this to be correct practice, we see no occasion to make an exception of the right to grant a new trial.

Generally, the district courts have the power to grant new trials where a proper showing is made. The statute seems to make no restriction upon it. The provisions of article II, chapter 7, of the practice act, which treats of new trials, are in no wise limited to actions originally begun in the district courts. They are apparently applicable to all cases where there has been a trial and a decision by a jury, court or referee. To hold that they do not apply to cases appealed from a justice's court would be to construe into the statute an exception that does not exist there now.

The case of Schuyler v. Mills, 28 N. J. Law, 137, relied upon by relator, is not in point, for the reason that the statute of New Jersey in force when that decision was rendered provided that "after the trial of an appeal in the court of common pleas no new trial shall be granted by the said court." The only question in that case was whether a non-suit constituted a trial of the case. Having held that it did, there could, of course, under that statute, be no new trial.

Application for the writ denied.